2010 (5) TMI 457 - AT - Service Tax

Appeal to Commissioner (Appeal) Limitation Appeal dismissed by Commissioner (Appeal) on the ground of delay - appeals before the Commissioner (Appeals), under Form ST-4 - appeals under the Finance Act, 1994, can be filed within 90 days from the date of receipt of the Order-in-Original - appellant had filed application for condonation of delay of appeals for filing the appeals beyond 60 days as envisaged under Section 35 of Central Excise Act, 1944, but within 30 days - delay of 28 days and which is within the powers of the ld. Commissioner (Appeals) to condone and suffice to say, that the powers could have been exercised by the ld. Commissioner (Appeals) in a better perspective than to dismiss the appeals for delay - Commissioner (Appeals) should have condoned the delay and taken up the appeals for disposal on merits. In view of this, we set aside the impugned order and allow the appeals filed by the assessee by way of remand

Summary

Issues:
1. Dismissal of appeals by the Commissioner (Appeals) based on the question of limitation.
2. Consideration of condonation of delay in filing appeals under Section 35 of Central Excise Act, 1944.
3. Interpretation of provisions under Section 85 of the Finance Act, 1994 for filing appeals.
4. Decision on whether the delay in filing appeals could have been condoned by the Commissioner (Appeals).
5. Setting aside the impugned order and allowing the appeals by way of remand for consideration on merits.

Analysis:
1. The appeals were dismissed by the Commissioner (Appeals) solely on the grounds of limitation. The Tribunal observed that the appeals could have been disposed of without the condition of pre-deposit, leading to the decision to take up the appeals for disposal.

2. The appellant had filed appeals before the Commissioner (Appeals) seeking condonation of delay in filing the appeals by 28 days under Section 35 of the Central Excise Act, 1944. The Tribunal noted that the appellant had taken steps for filing the appeal and had submitted an application for condonation of delay within the powers of the Commissioner (Appeals) to condone.

3. The Tribunal considered the provisions of Section 85 of the Finance Act, 1994, which allows appeals to be filed within 90 days from the date of receipt of the Order-in-Original. The appellant had filed the appeals under Form ST-4, indicating a belief that the appeal should be filed under Section 85. The Tribunal found that the delay of 28 days was within the powers of the Commissioner (Appeals) to condone.

4. The Tribunal disagreed with the Commissioner (Appeals)' decision to dismiss the appeals for delay, stating that the delay could have been condoned. The Tribunal set aside the impugned order and allowed the appeals by way of remand, directing the Commissioner (Appeals) to consider the appeals on merits and dispose of them accordingly.

5. In conclusion, the Tribunal allowed the appeals by remand, emphasizing that the Commissioner (Appeals) should have condoned the delay and proceeded to consider the appeals on their merits. The stay petitions were also disposed of in light of the decision to allow the appeals for further consideration.